Terms and Conditions of Trade

1.            Definitions

1.1          “Agreement”     -              These Terms and Conditions of Trade

1.2          “Seller” -              Wold Airbrush Limited

1.3          “Customer”        -              The person names on the front of this agreement

1.4          “Goods”               -              The Seller’s manufactured and/or distributed products identified in the written notification by the Seller to the Customer of acceptance of an order placed by the Customer.

1.5          “PPSA”                 -              The Personal Properties Securities Act 1999

1.6          “PMSI”                 -              Purchase Money Security Interest

1.7          “GCA”                   -              Consumer Guarantees Act 1993

2.            Terms of Agreement      Unless otherwise agreed in writing to the contrary by the Manager of the Seller, all Goods supplied by the Seller to the Customer will be subject to this agreement.  Notwithstanding anything contained in or accompanying any order submitted by the Customer to the Seller, the Customer shall be deemed to have accepted the terms and conditions contained in this Agreement.

3.            Orders

The Seller reserves the right to accept in whole or in part or reject any order submitted by the Customer.

4.            Formation of Contract

A contract upon the Terms and Conditions contained in this Agreement shall be formed upon the Seller sending to the Customer an acknowledgment of acceptance by the Seller of the Customer’s order.

5.            Price

5.1          Unless otherwise agreed by the Seller, all prices for Goods are subject to variation in the following circumstances:

5.1.1      at any time prior to acceptance by the Seller of the Customer’s order; or

5.1.2      after formation of the contract in accordance with clause 4 upon the circumstances set out in clause 6.

6.            Other Charges

Unless otherwise agreed in writing, the Customer shall pay freight and Government duties, levies, fees and taxes including Goods and Services Tax.  Any change in price arising from the imposition of or change in such costs, duties, levies, fees and taxes shall be for the account of the Customer and shall be invoiced accordingly.

7.            Terms of Payment

7.1          Unless otherwise agreed by the Seller, payment for all Goods shall be in New Zealand Dollars and is due net cash on or before the 20th of the month following delivery.

7.2          Should payment in full not be received by the Seller by the due date, the Customer shall pay interest on the outstanding monies at the rate of 5% above the current overdraft rate charged by the Seller’s bankers.

7.3          The failure by the Customer to pay the Seller by the due date shall entitle the Seller to review the availability and terms of credit.

7.4          Payments made by the Customer will be credited against the oldest outstanding balances in the customer’s account.

8.            Credit Rating

Should the Seller become dissatisfied with the Customer’s credit rating, the Seller may suspend deliveries indefinitely or until such time as the Customer’s credit rating has been established to the Seller’s satisfaction.

9.            Delivery

9.1          The Customer is responsible for the payment of all freight and delivery charges unless otherwise specified in writing.

9.2          The Seller will make every effort to ensure delivery is on time but will not be liable for any loss or damage arising in any way from delays in delivery.

10.          Risk

10.1        Risk in the Goods supplied by the Seller shall pass to the Customer upon the products leaving the Seller’s premises.

10.2        The Seller will not in any circumstances be liable for any loss, damage or deterioration occurring after the Goods have been delivered to the Customer.

11.          Ownership

11.1        The property in the Goods shall remain with the Seller until payment in full of the purchase price of the Goods and all other amounts owing to the Seller by the Customer have been received by the Seller.

11.2        Until property in the Goods passes to the Customer:

11.2.1    The Customer shall store the Goods separately and in a manner which enables them to be identified and cross referenced to particular invoices issued by the Seller.

11.2.2    Unless otherwise notified in writing by the Seller, the Customer is authorised to sell the Goods in the ordinary course of business. 

11.2.3    The Customer authorises the Seller or its agents to enter the Customer’s premises to remove any Goods which are the property  of the Seller.

11.3        The right to on sell  deal or otherwise dispose of the Goods in the normal course of trade may be revoked at any time by the Seller and shall automatically cease on the occurrence of any of the events set out in clause 20 hereof or where the Customer is in default of any of its obligations to the Seller.

12.          Purchase Money Security Interest

12.1        The Customer acknowledges and agrees that the Seller may register any security interest that the Seller has in respect of the Goods and their proceeds on the Personal Property Securities Register and that such security interest survives until the Goods are paid for in full. 

12.2        Until the Seller has received payment in full for the Goods, the Customer acknowledges and agrees that:

12.2.1    The Seller supplies the Goods to the Customer on condition that the Seller has a PMSI in the Goods;

12.2.2    In relation to Goods that are inventory, the Customer will not allow any non-purchase moneys security interest to arise in respect of the Goods unless the Seller has perfected its PMSI prior to the Customers possession of the Goods;

12.2.3    The Customer will not permit the Goods to become accessions to or co-mingled with other Goods or mass if the Seller has not perfected any security interest that the Seller has in relation to the Goods;

12.2.4    If the Customer, notwithstanding clause 12.1 of this Agreement, sells the Goods before paying the Seller for them, the Customer will pay the proceeds arising from the sale into a separate account with separate records so that those proceeds remain identifiable and traceable to that sale and the Goods.  The Customer agrees that there will be no other funds in the account.  If the Customer further deals with such proceeds, the Customer will manage those dealings in a manner so that the proceeds remain identifiable or traceable to the original Goods.  If the Customer sells the Goods before paying the Company for them, all claims which the Customer holds against third parties shall be handed over to the Seller.

12.3        If the Seller perfects any security interest that it has in relation to the Goods, the Customer will not do anything that results in the Seller having less than the security or priority position in respect of the PPSA that the Seller assumed at the time of perfection. 

12.4        If the Seller is a secured party under the PPSA:

12.4.1    So far as permitted by Section 107 of the PPSA the Customer will have no rights under Sections 114, 117, 120, 133 and 134 of the PPSA.

12.4.2    The Customer agrees that its rights as a Debtor pursuant to Sections 116, 119, 120(2), 121, 125, 126, 127, 129, 131 and 132 of the PPSA do not apply to the security interest granted by the Seller.

12.4.3    In accordance with Section 148 of the PPSA, the Customer waives its rights to receive any financing statement or financing change statement from the Seller.

12.5        The Customer will assist the Seller by completing any formalities or providing any information required by the Seller to establish and maintain the best security position that it is entitled to under the PPSA. 

12.6        If Goods are supplied to the Customer on “a sale or return” basis, the Seller shall record such fact in its written notification to the Customer of acceptance of the order placed by the Customer and shall, in such written notification, advise the Customer of the period within which the Customer may exercise the right of return (“the period of return”).  If a Customer does not return the Goods by the date on which the period of return expires, and if the Customer has not previously paid for the Goods, then the purchase price for the Goods is payable by the Customer to the Seller forthwith upon the expiry of the period of return.

13           Exclusion of Implied Terms

Except as expressly provided herein and to the extent permitted by law, all implied conditions, warranties, guarantees, representations, undertakings, rights, duties or liabilities, whether arising by implication of law, by statute or otherwise, are hereby expressly excluded.
14.          Representations by the Customer
14.1        The Customer agrees to make no representation or warranty or guarantee in respect of the Goods other than those contained in information provided in writing by the Seller.

14.2        The Customer agrees to provide to every purchaser of the Seller’s products a copy of all relevant current written information provided by the Seller.

14.3        The Seller may from time to time require the Customer to withdraw and return out of date product information and point of sale material.  The Customer agrees to withdraw all copies of out of date material from display and stock and deal with them as directed by the Seller.

14.4        The Customer agrees to indemnify the Seller against any loss or damage arising as a result of its failure to comply with clauses 14.1 to 14.3 above.

15.          Extent of Seller’s Liability

The extent of the Seller’s liability under this Agreement shall be limited to repair or replacement or credit (in each case as the Seller shall elect) in respect of any Goods which are defective in materials or workmanship.

16.          Business Purposes

16.1        If the Customer acquires the Goods from the Seller for the purposes of a business in any way, or the Customer holds itself out as acquiring the Goods for the purposes of a business in any way, the Customer agrees to the following terms:

16.1.1    the conditions, warranties and guarantees set out in the Sale of Goods Act 1908 and the Consumer Guarantees Act 1993 will not apply and are excluded from this agreement;

16.1.2    the Customer may not claim any of the remedies set out in the CGA from the Seller or from any manufacturer of the Goods or from any manufacturer of any materials or components in the Goods;

16.1.3    neither the Seller, nor the manufacturer(s) of the Goods or any of their materials or components, will be liable to the Customer for any consequential loss or damage however that loss or damage is caused or arises.  This exclusion of liability includes, but is not limited to, consequential loss or damage caused by or arising from faulty installation, unreasonable use, negligence (including a failure to do something which should have been done or to prevent something from happening), faulty design, and faulty material, equipment or component parts in the Goods.  The exclusion also includes costs incurred in returning the Goods to the Seller or to any manufacturer.

17.          Customer Warranties

17.1        The Customer warrants that if the Customer purchases any Goods for resupply:

17.1.1    if it supplies the  Goods for further resupply it will ensure that its terms and conditions of supply require
its customer and each person in the distribution chain to include in its supply agreements or conditions of sale obligations requiring its customer to exclude liability for any claims under the CGA but only where the end user/consumer acquires the Goods for business purposes;

17.1.2    if it supplies the Goods directly to an end user/consumer it will do so using terms and conditions of supply which exclude liability for any claims under the CGA;  but only where the end user/consumer acquires the Goods for business purposes.

17.2        The Customer warrants that it will indemnify the Seller against any failure by the Customer or its customers to properly contract out liability to business and users/consumers under the CGA.

18.          Claims

All claims for errors, short-delivery or defective Goods must be made in writing within 7 days of delivery in each case quoting invoice numbers.  All claims are subject to acceptance by the Seller.

19.          Force Majeure

The Seller shall not be liable for any delay in complying with its obligations to the Customer caused in whole or in par by force Majeure which shall include (but not be limited to) and act of God, natural disasters, strike, lockouts, fire, war, civil commotion, inability to obtain materials or supplies including the imposition of any export or import bans or any other cause beyond the reasonable control of the Seller.

20.          Termination

20.1        The Seller may terminate any contract for the supply of Goods forthwith where:

20.1.1    the Customer commits a breach of any term or condition of this Agreement; or

20.1.2    the Customer becomes insolvent (within the meaning of the Insolvency Act 1967 or the Companies Act 1993) or ceases or threatens to cease to carry on its business;

20.1.3    any distress is levied upon the Customer’s property or assets;  or

20.1.4    the Customer makes or offers to make any arrangement or composition with its creditors or commits any act of bankruptcy or if any one or more individuals comprising the Customer is adjudicated bankrupt; or

20.1.5    any resolution or petition to wind up the Customer is passes (other than for the purpose of reconstruction or amalgamation), or if a receiver is appointed.

20.2        Such termination by the Seller shall be without prejudice to any claim or right which the Seller might otherwise make or have against the Customer.

21.          Governing Law/Entire Contract
The Agreement shall be governed by the laws of New Zealand and shall constitute the entire contract between the Customer and the Seller with respect to the supply of the Goods.

22.          Variations

This Agreement shall not be varied, modified, amended, rescinded, cancelled or waived in whole or in part except by agreement in writing with the Seller.

23.          Invalidity
If any provision of this Agreement is held to be invalid or unenforceable for whatever reason, the remaining provisions shall remain in full force and effect.

24.          Non-Waiver

Where the Seller fails to enforce any terms and conditions in this Agreement or fails in any way to exercise its rights under this Agreement, the Seller shall not be deemed to have waived those rights with respect to any subsequent breach of any term or condition or right.